In the matter of Access Elevators Australia Pty Ltd [2016] NSWSC 739

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Access Elevators Australia Pty Ltd [2016] NSWSC 739 Hearing dates: 14 April and 17 May 2016 Date of orders: 09 June 2016 Decision date: 09 June 2016 Jurisdiction: Equity Before: Robb J Decision: See pars 111, 112 and 113 Catchwords: CORPORATIONS – application to set aside three statutory demands – plaintiff sought to set aside first statutory demand pursuant to ss 459G, 4559H(1) and 459J(1) of the Corporations Act 2001 (Cth) on grounds of genuine dispute as to existence of one part of the debt claimed, and an offsetting claim as to the whole of the debt – HELD there was a genuine dispute as to the existence of one part of the debt claimed – whether plaintiff entitled to offsetting claim under s 459H(1)(b) of the Corporations Act 2001 (Cth) – offsetting claim based on mere assertions made by plaintiff – HELD no genuine offsetting claim against creditor – HELD statutory demand varied under s 459H(4) of the Corporations Act 2001 (Cth) – plaintiff sought to set aside second and third statutory demands under ss 459G and 459J(1) of the Corporations Act 2001 (Cth) – whether defect in the second statutory demand when not signed by all joint creditors – defendant claimed that he signed the statutory demand on behalf of a partnership rather than joint creditors – HELD substantial injustice would have been caused to the plaintiff due to misdescription of the debt in the statutory demand if the statutory demand had in fact been signed on behalf of a partnership – determination of whether the joint creditors were in fact partners – HELD in fact the joint creditors were not partners – in any event, the demand would have been served without the authority of the other partner – HELD second statutory demand set aside – whether defendant should be allowed to reopen case to tender further evidence – HELD fresh evidence pertaining to partnership would have been found before the trial if the defendant had exercised reasonable diligence – HELD public interest in the finality of litigation in this instance outweighs the benefit of receiving further inconclusive evidence – HELD original decision to set aside second statutory demand upheld – third statutory demand signed by one partner on behalf of partnership without the authority of the other partners – some other partners supported the statutory demand being set aside HELD third statutory demand set aside Legislation Cited: Corporations Act 2001 (Cth) Income Tax Assessment Act 1936 (Cth) Income Tax Assessment Act 1997 (Cth) Partnership Act 1892 (NSW) Cases Cited: ASIC v Rich [2006] NSWSC 826; (2006) 235 ALR 587 Bentham Management Pty Ltd v Union Finance Pty Ltd [2007] SASC 42; 247 LSJS 103 Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd [2013] NSWCA 344; (2013) 85 NSWLR 601 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Collier Nominees Pty Ltd v Consolidated Constructions Pty Ltd (unreported, SC (NSW), 3 July 1998, BC9803056) Federal Commissioner of Taxation v McDonald 87 ATC 4541 Re Australia Seiwa Pty Ltd [2012] NSWSC 1334 Re Kevin McNamara & Son Pty Ltd [2014] VSC 337; (2014) 287 FLR 96 The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 Tokich Holdings Pty Ltd v Sheraton Constructions (NSW) Pty Ltd (in liq) [2004] NSWSC 527; (2004) 185 FLR 130 115 Constitution Road Pty Ltd v Alan Downey as Trustee for NBD Systems & Anor [2008] NSWSC 997; (2008) 220 FLR 216 Texts Cited: Assaf, Statutory Demands and Winding Up in Insolvency (2nd ed, LexisNexis Butterworths) Category: Principal judgment Parties: 2016/69888 Access Elevators Australia Pty Ltd (plaintiff) Garry John Kearns (defendant)